Jacob Eli Klugsberg

The parties in three related class actions regarding administrative segregation in federal penitentiaries sought court approval for a revised Distribution and Individual Issues Protocol, notices, and forms.

The courts approved the documents but revised the proposed opt-out procedure to ensure that all putative class members detained in administrative segregation after December 12, 2016, who had not previously had an opportunity to opt out, were granted a first-time opportunity to do so.

The joint liquidators of Stanford International Bank (SIB) and a group of investors brought actions against TD Bank, SIB's primary U.S. dollar correspondent bank, for knowing assistance in breach of fiduciary duty and negligence.

The plaintiffs alleged that TD Bank should have detected and prevented the massive Ponzi scheme orchestrated by SIB's owner, Allen Stanford.

The Superior Court of Justice dismissed the actions, finding that TD Bank had no actual knowledge of the fraud and was not reckless or wilfully blind.

The court also held that TD Bank did not owe a novel duty of care to protect its customer from insider abuse, and even if it did, it met the standard of care of a reasonable banker during the relevant period.

This is Part 2 of a joint decision by the Ontario Superior Court of Justice and the Superior Court of Québec concerning the Brazeau, Reddock, and Gallone class actions.

The courts finalized and approved the Distribution and Individual Issues Protocol, which governs the distribution of the aggregate damages award and the procedures for determining individual issues.

The decision addresses submissions from the parties on a provisional draft protocol and resolves a late-arriving dispute between Class Counsel and the Law Foundation of Ontario regarding funding for the individual issues phase by deleting contentious provisions.

The plaintiffs brought a motion for the production of a Cooperation and Common Interest Agreement between the defendants.

The plaintiffs sought the agreement to support their argument that the defendants mounted a joint defence, which would affect the apportionment of costs following summary judgment motions.

After reviewing the agreement in camera, the court dismissed the motion, finding that the document was protected by privilege.

At a case conference, the Varone Parties sought compliance with a previous discovery plan order made by Master Muir, which the Concord Adex Parties had failed to meet.

The court ordered the Concord Adex Parties to serve their Affidavit of Documents within 10 days and varied the litigation timetable accordingly.

The court also provided directions on how to address an undetermined costs issue from the previous motion, as Master Muir had passed away before rendering his decision on costs.

In a class action alleging bacterial infections from epidural injections, the defendant physician, Dr. James, moved for documentary discovery and oral examinations of class members.

The court, considering the plaintiff's novel epidemiological causation theory, granted further documentary production for relevant, non-duplicative information.

However, it denied oral examinations for most class members, ordering written interrogatories for a selected sample instead, citing concerns about litigation delay, expense, and the passive role of class members.

The representative plaintiff could be re-examined orally.

The plaintiffs and defendants brought competing motions regarding the approval of discovery plans in a civil action initiated five years prior.

The plaintiffs proposed a broad plan seeking extensive documentation from 2008 to the present, including personal financial and travel records.

The defendants opposed this, proposing a more limited plan tailored to the relevant period of the relationships (2010-2015).

Applying principles of common sense and proportionality, the court found the plaintiffs' proposed plan to be excessively broad and not aligned with the "needs not wants" approach to discovery, as articulated in *Drywall Acoustic Lathing and Insulation* and *Hryniak v. Mauldin*.

The defendants' more proportional and relevant discovery plan was approved, and the parties were ordered to adhere to a consent timetable.